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Breaking down the GOP tax reform bill

How will it impact your business?

ContentsTax Cuts and Jobs Act: An overview 5

Individual changes 7

Transfer taxes 10

Corporate rates 10

Pass-through business rate 10

Business provisions 12

International 16

Compensation and benefits 19

Tax-exempt organizations 20

Outlook 22

Breaking down the GOP tax reform bill 3

Unraveling the tax reform bill: What you need to know

House Republicans released a sweeping tax reform bill that would overhaul individual and business taxes. The Tax Cuts and Jobs Act is scheduled for mark-up in the House Ways and Means Committee and represents a major step forward in the tax reform process.

Republicans have made tax reform their top legislative priority, but taxpayers have been waiting almost a year for the details behind the proposals. The 400-plus pages of legislative language finally provide a clearer picture of the potential implications for businesses and individuals.

Still, the bill is far from a finished product. It was re-drafted hastily several times before its initial release, and there appear to be many technical and even policy glitches. A chairman’s substitute amendment with several changes was released a day after the initial bill was made public, and additional versions and changes are expected. Some of the proposals are already proving controversial and may be difficult to advance. Most importantly, the legislation does not appear to comply with reconciliation rules that would allow it to pass the Senate with a simple 50-vote majority.

The Joint Committee on Taxation (JCT) estimates that the bill would reduce revenue by $1.487 trillion over the next 10 years, within the $1.5 trillion allowance provided by the budget reconciliation instructions. But reconciliation also precludes any revenue loss outside the budget window, and the bill appears to lose significant money after 10 years. Very few of the new tax benefits are temporary, and none of the rate cuts sunset. In addition, many of the revenue-raisers would increase receipts only within the 10-year budget window. The bill will likely have to be modified significantly before it can comply with reconciliation rules. Options include adding additional revenue-raisers, dialing back rate cuts and other beneficial changes, or allowing broad sections to expire, much like the 2001 and 2003 tax cuts.

The next round of changes should come quickly when House Ways and Means Chair Kevin Brady, R-Texas, releases his final chairman’s amendment before the mark-up. He is seeking to limit amendments from Republicans by incorporating any changes needed to secure support upfront. Despite the efforts to expedite the bill, it may prove contentious enough that changes are needed at the mark-up or on its way to the House floor.

4 Breaking down the GOP tax reform bill

Senate Finance Committee Chair Orrin Hatch, R-Utah, said he plans to introduce an alternate version as early as this week if the House Ways and Means Committee completes its mark-up. The Senate is expected to make departures from the House version in some key areas, meaning the two chambers would have to reconcile their bills.

There are clearly still many hurdles to enactment, and the proposals will evolve as the process moves forward. Still, the House bill represents a significant starting point for a potential full tax reform bill that would have far-reaching implications for taxpayers of all income levels.

“The House bill represents a significant starting point for a potential full tax reform bill that would have far-reaching implications for taxpayers of all income levels.”


Tax Cuts and Jobs Act: An overviewThe centerpiece of the legislation is a deep corporate rate cut to 20%, effective beginning in 2018, that will cost almost $1.5 trillion over the next 10 years, according to the estimate from JCT. Under the bill, many pass-through business owners would be eligible for a new 25% rate on their business income, determined using either a return on capital calculation or a safe harbor under which 30% of income would qualify. The bill would also eliminate many business tax preferences and change others in significant ways, including:

• Doubling bonus depreciation to 100% for five years and allowing used property to qualify

• Limiting interest expense deductions to 30% of taxable income before interest, taxes, depreciation and amortization (EBITDA)

• Repealing the corporate alternative minimum tax (AMT)

• Limiting net operating losses (NOLs) to 90% of taxable income, but allowing unlimited carry-forwards with an adjustment for inflation (but disallowing carry-backs)

• Limiting like-kind exchanges to real property

• Repealing the work opportunity tax credit, the new markets credit and the Section 199 deduction for domestic production activities

The biggest shift for businesses might come in the international area, where a territorial system is paired with broad new anti-base-erosion provisions after the imposition of a one-time tax on unrepatriated earnings. Key aspects of these changes include:

• Shifting toward a territorial tax system in which much of future foreign earnings could be repatriated tax-free through a 100% dividends-received deduction

• Imposing a one-time tax on previously unrepatriated foreign earnings at 12% on cash and cash equivalents and 5% on the remainder

• Adding new anti-base-erosion provisions that would impose a minimum tax on “high-return” earnings, limit interest deductions for U.S. members of worldwide groups, and impose an excise tax on certain deductible payments to related foreign parties


Taxes on individuals would also change dramatically, even without any reduction in the top rates. The top individual rate on ordinary income would remain 39.6%, while the top rate on capital gains and dividends would remain 20% (not including the 3.8% tax on net investment income). The $1 trillion rate cut would be achieved largely by condensing and adjusting the tax brackets. These cuts would be partially offset by repealing most individual credits and deductions. Important individual provisions include:

• Doubling the standard deduction but repealing personal exemptions

• Increasing the child credit from $1,000 to $1,600

• Repealing most itemized deductions

• Limiting the state and local tax deduction

• Limiting the deduction for mortgage interest to $500,000 of debt (down from $1.1 million)

• Doubling the transfer tax exemption for six years before repealing the estate tax while retaining the gift tax at a lower rate and allowing the step-up in basis for inherited assets

The bill is also notable for many of the potential changes it does not include. It would not repeal the 3.8% tax on net investment income or change the taxation of carried interest. It would not repeal the medical device excise tax. After intense criticism of discussions to limit the amount taxpayers can contribute to 401(k) plans on a pre-tax basis, Republicans abandoned any changes in that area. The bill also retains the R&D credit, the last-in, first-out inventory method, and preserves and even expands the cash method of accounting. The bill does not propose any shift to mark-to-market accounting for derivatives.

The following covers the major proposals in the Tax Cuts and Jobs Act in more detail.


Individual changesThe bill repeals the AMT, increases the child tax credit and provides rate cuts across the tax brackets, but balances these changes against the repeal and limitation of many popular individual tax incentives. The changes to individual rules would cost $310 billion altogether, excluding the special rate for pass-through business income. The changes generally would be effective beginning in 2018.

Income tax rateThe bill leaves the top rates on ordinary income and capital gains and dividends intact, and instead achieves rate cuts by condensing the seven current tax brackets into four. Although

the thresholds do not match precisely, the changes loosely correspond to combining the 10% and 15% brackets into a 12% bracket, combining the 25% and 28% brackets into a 25% bracket, and combining the 33% and 35% bracket into a 35% bracket. The 39.6% bracket begins at a higher income level under the bill, particularly for joint filers, but the benefit of the 12% bracket begins to phase out once income reaches $1 million (single) or $1.2 million (joint).

The bill would also expand the amount of capital gains and dividends that qualify for the zero and 15% brackets, but leave the top rate at 20%. However, the bill would change the measure of inflation used to adjust all the tax brackets, causing shallower adjustments.

Figure 1: Tax brackets

$500,000

$1M

Current CurrentTax Cuts Jobs Act Tax Cuts Jobs Act

$418,400

$470,700

$416,700

$416,700$191,650

$233,350$91,900 $153,100

$37,950 $75,900$9,325 $18,650

$200,000

$260,000

$45,000 $90,000

*Does not include phase-out of the 12% bracket benefit after $1 million (single) and $1.2 million (joint).

39.6%

39.6%

33.0%

33.0%

25.0% 25.0%

15.0%10.0%

28.0%

28.0%

39.6%39.6%

35.0% 35.0%

25.0% 25.0%

12.0% 12.0%10.0%15.0%

35.0%

35.0%

JOINTSINGLE


Family incentivesThe bill doubles the standard deductions but repeals personal exemptions. The child tax credit would increase from $1,000 to $1,600. The refundable portion would remain unchanged at $1,000, but would be indexed to inflation up to $1,600. A credit of up to $300 for non-child dependents would be allowed through 2022. The legislation also increases the phase-out thresholds for the child tax credit.

GRANT THORNTON INSIGHT

The Republican press material suggests the bill creates a new “zero” percent bracket. There is no actual zero bracket. This merely refers to the new higher standard deduction. To the extent that a standard deduction can be considered a “zero bracket,” then it should be noted that the “zero bracket” under current law can be even larger for certain taxpayers. For example, a married couple with two children would have a standard deduction and four exemptions totaling $28,900 under current law, compared to a $24,400 standard deduction under the bill. In fact, the repeal of personal exemptions raises over $1.5 trillion, far greater than the $913 billion taxpayers are expected to save through the increased standard deduction.

Itemized deductionsThe bill adds new limits to the itemized deductions for charity, state and local tax, and mortgage interest, and repeals most others, including those for medical expenses, tax return preparation, employee expenses, wagering losses, and casualty losses.

The charitable deduction is left largely intact, but the 50% adjusted gross income limitation increases to 60% for cash contributions. The bill would reduce the amount of debt taken into account for the mortgage interest deduction from $1.1 million to $500,000. Debt incurred before Nov. 2, 2017, would be exempt, with these grandfathering rules accommodating some refinancing of existing debt and acquisitions under a binding written contract agreed to before that date. The deduction for state and local tax would be limited to $10,000 of property taxes, except for taxes which are attributable to a trade or business activity. It appears that state taxes on an individual’s income from a trade or business in a pass-through would still be deductible. The bill would also repeal the “Pease” limitation on itemized deductions.

Above-the-line deductionsThe bill would repeal several above-the-line deductions for moving expenses, teacher costs, and medical savings account contributions. The above-the-line deduction for alimony would be repealed, but the recipient would no longer be required to include it in income. The above-the-line deduction for individual retirement accounts (IRAs) is retained, but taxpayers would no longer be able to unwind a conversion to a Roth account by recharacterizing a rollover. Taxpayers would also no longer be able to recharacterize traditional IRA contributions as Roth contributions or vice versa.


Education incentivesThe bill retains the American Opportunity Tax Credit (AOTC) and Section 529 education savings plans, with several changes, but generally repeals all other education incentives, including:

• Deduction for student loan interest expenses

• Above-the-line deduction for tuition and related expenses

• Exclusion for interest on U.S. savings bonds used to pay for qualified higher education expenses

• Exclusion for qualified tuition reduction programs and employer-provided education assistance

Taxpayers would also no longer be able to make contributions to Coverdell savings accounts, which could be rolled into 529 plans. Notably, 529 plans would be expanded to apply to elementary and secondary schools and apprenticeships. The AOTC would be made available for a fifth year at a reduced rate, but the refundable amount for the credit would be reduced from $1,000 to $500. The legislation would also exclude from income any discharge of student debt on account of a student’s death or total disability.

Individual creditsThe bill would repeal several nonrefundable individual credits, including credits for:

• Individuals over the age of 65 who have retired on disability

• Adoption costs

• Mortgage credit certificates

• Plug-in electric vehicles

The repeal of these credits would be effective for tax years beginning after 2017, and in the case of the plug-in electric vehicle credit, for vehicles placed in service for tax years beginning after 2017.

ExclusionsThe bill would provide strict new limits on when gain from the sale of a principal residence can be excluded from income. For sales after 2017, gain could only be excluded if the home was used as a principal residence in five of the previous eight years, up from two in five. Under a law change several years ago, the amount of gain excluded must also generally be prorated based on the amount of time the home was not used as a principal residence. The exclusion could be used only once every five years under the bill instead of every two years. Finally, the exclusion would begin to phase out once income exceeded $250,000 (single) or $500,000 (joint).

Several other exclusions from individual income for employer programs would also be repealed effective for 2018, including:

• Employee achievement awards

• Dependent care assistance programs

• Moving expense reimbursements

• Adoption assistance programs

The exclusion for employer-provided housing would be retained, but limited to $50,000 in value per year and would begin to phase out once the employee’s income reached $120,000. For a taxpayer that owned at least 5% of the business, the exclusion would be eliminated altogether.

AMTThe bill would repeal the AMT for tax years beginning in 2018. Taxpayers with unused AMT credits could claim up to 50% of their credit balance as refundable in each following year through 2021, with all remaining credits claimed in 2022.


Transfer taxesThe bill would double the lifetime exemption for the estate, gift and generations skipping transfer (GST) tax from $5.6 million to $11.2 million beginning in 2018, and the exclusion would continue to be adjusted for inflation. Beginning in 2024, the estate and GST taxes would be repealed and the top gift tax rate would be reduced to 35%. The bill would not repeal the step-up in basis in inherited assets, which in the past has typically been considered a necessary trade-off for estate tax repeal.


As currently proposed, the legislation would discourage any outright gifts made during a taxpayer’s lifetime. Gifts would not only have the potential to incur gift taxes after the estate tax is repealed, but beneficiaries would not receive the step-up in basis. However, the estate tax repeal provision may be one of the least likely to survive, and one of the most likely to sunset if it does. Republicans have proven very sensitive to accusations that they are providing a tax cut to the rich, and this provision is estimated to save $172 billion essentially for taxpayers with estates worth more than $5.6 million. Hatch has indicated his committee is considering retaining the tax while increasing the exemption.

Corporate ratesThe bill would replace the current corporate rate schedule with a flat rate of 20% for tax years beginning after Dec. 31, 2017. The 35% flat rate for personal service corporations would be reduced to 25%.

Pass-through business rateThe bill would create a 25% rate on qualifying business income from pass-through entities such as partnerships, S corporations, trusts or sole proprietorships. Owners considered passive under the Section 469 rules would generally qualify for the 25% rate on all their income from the entity. Non-passive owners would receive the 25% rate only on the portion of their income considered a return on investment, with the rest treated as compensation and taxed at ordinary income tax rates. In addition to the net business income from the activity, qualifying business income includes wages, Section 707(a) payments, Section 707(c) guaranteed payments, and director’s fees received from the pass-through entities.

A safe harbor would allow active owners to treat 30% of their income as qualifying. It would not be available for professional service businesses, defined as health, law, engineering, architecture, accounting, actuarial science, performing arts, consulting, athletics, financial services, brokerage services, or any trade of business where the principal asset of such trade or business is the reputation or skill of one or more of its employees.


Active owners could also elect to determine the amount of income eligible for the 25% rate using a return on capital calculation. The election to use this method is binding for five years. The calculation applies a deemed rate of return of 7% plus the short-term adjusted applicable federal interest rate (currently 1.27%) to the owner’s share of the adjusted basis in the depreciable property or other real property used in the business activity (minus deductible interest). Adjusted tax basis is determined without taking into account the bonus depreciation or Section 179 expensing.

Owners of the professional service businesses defined above could use this method only if the result of the calculation was equal to at least 10% of their income from the entity. If the result falls under this threshold, no income from the entity would qualify for the 25% rate. Any dividend from a real estate investment trust not treated as capital gain or qualified dividend would be eligible for the 25% rate.

The legislation also amends the self-employment tax rules so that employment and self-employment taxes generally do not apply to income qualifying for the 25% rate. (Clarification would be needed to indicate that net income from a passive activity is not subject to self-employment taxes). If the owner is passive, the income would still be subject to the 3.8% tax on net investment income (NII) tax. But for the portion of an active owner’s income that qualifies either under the 30% safe harbor or the return capital calculation, that portion of the income would generally not incur employment or NII taxes. To be consistent with the change, the bill repeals the existing exception from self-employment taxes for limited partners. The exception for rental income is also repealed. The amendment to self-employment taxes may subject a portion of the S corporation shareholder’s pro rata share of S corporation income for the first time.


The potential large disparity in rates between C corporations and pass-through businesses under this legislation could prompt many businesses to re-examine their entity choice. Using the 30% safe harbor creates a blended rate of 35% for owners at the top individual tax bracket. The return on capital calculation may achieve a better result for some pass-through owners, but does not approach the 20% rate that would be enjoyed by C corporations. Even with the potential second layer of tax on corporate earnings when distributed, the lower rate could be attractive.

The analysis would depend on many factors, such as how many owners are passive, how earnings are distributed, whether the business benefits from the cash method of accounting, and any plans to exit the business. Conversions can also have many unfavorable tax consequences. The amendment to self-employment taxes may also subject a portion of the S corporation shareholder’s pro rata share of S corporation income for the first time.

“The potential disparity in rates between C corporations and pass-through businesses under this legislation could prompt many businesses to re-examine their entity choice.”


Business provisionsThe bill would make some fundamental reforms to how business income tax is calculated, including changes to cost recovery, interest deductions, AMT and NOLs. But the lion’s share of changes repeal specific targeted business benefits to raise over $600 billion and help pay for the corporate rate cut.

ExpensingThe bill would provide 100% bonus depreciation for property placed in service after Sept. 27, 2017, and before Jan. 1, 2023. In effect, equipment with a 20-year depreciable life or less could be expensed if acquired in the next five years. The bill would also make used property eligible for bonus depreciation for the first time, but anti-churning rules would apply for related parties. The provision would not be available for public utilities or property used in real property trade or business because these businesses are not subject to new limits on interest expense deductions discussed below.

The Section 179 expensing limit would be increased to $5 million for tax years beginning after 2017 and before 2023, with the start of the phase-out increased to $20 million. Both limits would be indexed to inflation, and the eligible property would be expanded to include qualified energy efficient heating and air conditioning property placed in service after Nov. 2, 2017.

Interest deductionThe bill would limit the deduction for business interest expense in excess of business interest income to 30% of “adjusted taxable income.” Adjusted taxable income removes interest expense, interest income, net operating loss deduction, depreciation, amortization and depletion from taxable income. Investment interest income and expense is not affected by the provision. Partnership and S corporations apply the limitation at the entity level.

Any disallowed interest expense could be carried forward for five years, and for pass-throughs, the carry-forward would be considered an attribute of the business and not the owners. Special rules would allow owners to use a pass-through entity’s unused interest limitation for a taxable year; and ensure that net income from pass-through entities would not be double-counted at the partner level. The limitation would not apply to a business with $5 million or less in annual gross receipts and certain regulated public utilities and real property trades or businesses. It would be effective for tax years beginning after 2017.



The limit on interest deductions was largely conceived as a trade-off for the full expensing provision. In fact, the bill explicitly prohibits the public utilities and real property businesses that are exempt from the interest limitation from using full expensing. But in many ways, the interest limitation and expensing provision are not well matched. For one, the full expensing provisions are only temporary, while the limitation on interest is permanent. More importantly, the structure of the interest limitation means it would likely affect highly leveraged businesses or businesses facing a downturn in income. These businesses won’t necessarily be benefiting disproportionately from full expensing, while many businesses that will benefit significantly from full expensing won’t necessarily be subject to the interest limitation.

Accounting methodsThe bill would increase the gross receipts eligibility limit to $25 million for qualifying to use several favorable accounting methods, including:

• Cash method under Section 448 for corporations and partnerships with corporate partners (also no longer required to meet gross receipts test for all prior years)

• Section 447 method of accounting for corporations engaged in farming

• Exception from the Section 263A uniform capitalization rules

• Special rules in Section 460 for long-term construction contracts (does not include long-term manufacturing contracts.

In addition, taxpayers meeting the Section 448 gross receipts test would no longer be required to account for inventory under Section 471. They would be allowed to use the cash method of accounting and account for its inventory as non-incidental materials and supplies or use the method used in its financial statements. Additionally, the exemption from the Section 263A uniform capitalization rules was broadened to include producers. The bill does not modify the adjustment period under Section 481.

Corporate AMT and NOLsThe bill proposes to repeal the corporate AMT effective for tax years beginning after Dec. 31, 2017. Taxpayers with unused AMT credits could claim up to 50% of the credit balance as refundable in each of 2019, 2020, and 2021, with all remaining credits claimed in 2022. It’s important to note that while the bill repeals the corporate AMT, it retains the limit on using NOLs against taxable income that is often the primary item that pushes corporations into AMT.

Under the bill, NOL deductions would be limited to 90% of taxable income, the current rule under the corporate AMT. NOLs arising in tax years beginning after Dec. 31, 2017, could no longer be carried back, except for a one-year carry-back period for small businesses and farms affected by natural disasters. The 20-year limitation on carry-forwards would be repealed effective for tax years beginning in 2018 or later, and NOLs could be carried forward indefinitely. In addition, their value would be indexed to an inflation rate of 4% plus the short-term adjusted federal rate.

Contributions to capitalThe bill would significantly change the treatment of capital contributions to corporations. Under current law, contributions to capital are generally excluded from corporate income under Section 118, and a corporation does not recognize gain or loss when receiving money or property in exchange for its stock under Section 1032. The legislation would include capital contributions in corporate income to the extent they exceed the fair market value of the stock received in exchange. If no stock was issued for such money or property, the entire contribution of capital would constitute gross income to the corporation. Similar rules would apply for partnerships.


The bill would also affect how the basis of contributed property to the corporation is determined. Currently, a corporation’s basis in property acquired in a contribution of capital from a shareholder is the shareholder’s previous basis plus any gain the shareholder recognizes on the transfer. However, there are limitations under Section 362(e) that may currently apply to the basis if such contributed property had built-in loss. A corporation’s basis in property acquired from a non-shareholder is zero.

The bill provides that the basis for a contribution to capital would be the greater of the basis in the hands of the transferor plus any gain, or the amount included in gross income. The bill would also repeal rules that currently provide that a debtor corporation that acquires its debt from a shareholder as a capital contribution is treated as satisfying the debt with an amount of money equal to the shareholder’s adjusted basis in the debt. The changes would apply to contributions and transactions after the date of enactment.

Repeal of business benefits The bill would raise significant revenue by repealing or limiting many tax benefits. Major changes to deductions and other benefits generally effective for 2018 include:

• Limiting like-kind exchanges to real property (some transition rules apply)

• Repealing the Section 199 deduction for domestic production activities

• Disallowing the 50% deduction for certain entertainment expenses

• Repealing the deduction for local lobbying expensing

• Limiting the deduction on Federal Deposit Insurance Company premiums for institutions with total consolidated assets in excess of $10 billion

• Repealing the treatment of self-created patent, invention, model, design or secret formula as capital assets so that their sales create ordinary income

• Repealing the ability to defer gain from the sale of publicly traded stock by rolling it into a specialized small business investment corporation

• Repealing the deduction for unused business credits

The bill would also repeal the following tax credits effective for tax years beginning after Dec. 31, 2017:

• Credit for clinical testing or of certain drugs for rare diseases or conditions

• Employer-provided child care credit

• Rehabilitation credit

• Work opportunity tax credit

• New markets tax credit

• Credit for providing access to people with disabilities

• Enhanced oil recovery credit

• Credit for producing oil and gas from marginal wells

In addition, the FICA tip credit would be reduced by an increase in the wage threshold that an employee’s tips must exceed for calculating the credit.


Bond provisionsThe bill would repeal several tax incentives for bond provisions including:

• Repealing the tax exemption for private activity bonds issued after 2017

• Repealing the tax exemption for advanced refunding bonds issued after 2017

• Providing that no new tax credit bonds can be issued after 2017 (existing holders and issuers would continue receiving tax credits and payments)

• Repealing the tax exemption for state and local bonds issued after Nov. 2, 2017, that are used to fund a professional sports stadium

Insurance provisionsThe bill raises more than $30 billion from provision changes affecting insurance companies. The key revisions would:

• Repeal the three-year carryback and 15-year carry-forward for NOLs from life insurance companies.

• Repeal a provision allowing life insurance companies to deduct 60% of their first $3 million of income (subject to a phase-out as income approached $15 million).

• Replace the complex formula for accounting for reserves with a simple rule whereby a life insurance company takes into account 76.5% of an increase or decrease in its reserves.

• Repeal a special 10-year period for life insurance companies to take into account adjustments to taxable income caused by changes in the method used to calculate reserves.

• Replace a complex formula for allocating tax-exempt income between the company and policyholders by allocating 40% of tax-exempt income to the life insurance company in all cases.

• Require the taxation of “policyholders surplus accounts,” certain legacy amounts of untaxed and undistributed income that a small number of taxpayers retained from an insurance taxation method repealed in 1984.

• Increase the limit on property and casualty insurance companies for certain deductions from 15% of certain categories of tax-exempt income to 26.5%.

• Change the discount rate rules applicable to unpaid loss reserve deductions to require property and casualty insurance companies to use Treasury’s corporate bond yield curve to determine the discount.

• Repeal an election that allows insurance companies that made certain estimated tax payments to claim a deduction equal to the difference between discounted reserves and undiscounted reserves.

• Reduce the categories of insurance contracts subject to a 10-year deduction and increase the capitalization required.

Alternative energy incentivesThe bill provides a mix of favorable and unfavorable changes to the incentives for alternative energy. The inflation adjustment for the production tax credit (PTC) under Section 45 would be removed, so the credit rate would revert from 2.3 cents per kilowatt to 1.5 cents per kilowatt for facilities that begin construction after Nov. 2, 2017. Many projects now choose to claim the investment tax credit (ITC) under Section 48 instead of the PTC, which is still available for projects where construction begins before 2020 (at reduced rates). But the bill would also reverse favorable guidance from the IRS on the determination of when construction is considered to have begun.

The bill would reinstate the ITC under Section 48 for geothermal, fuel cell, microturbine, small wind, and combined heat and power system property, which had expired for these types of projects begun after 2016. The credit for these energy sources would now be extended temporarily and phase out along with the credit for solar property, which is available at a 30% rate for projects that begin before the end of 2019, a 26% rate for projects beginning construction in 2020, and a 22% rate for projects beginning construction in 2021. The 30% credit will not be available for projects beginning construction in 2022 or later.

The legislation does not extend many other alternative energy provisions that have expired, such as the alternative fuel tax credit.


Technical terminationsThe bill would repeal the provision in current law that terminates a partnership if at least 50% of the interest in its capital and profits are sold or exchanged within a 12-month period.


After a technical termination, the partnership is treated as newly formed even though it continues on in the same legal entity. Any previous accounting method elections and Section 754 elections would no longer be valid and depreciation would generally be restarted over a new recovery period by the newly formed partnership. This is a common trap for the unwary that can have severe tax consequences.

“The bill generally represents a shift from our current worldwide tax system to a territorial approach where most foreign earnings would generally be exempt from tax.”

InternationalAs expected, the bill generally represents a shift from our current worldwide tax system to a territorial approach where most foreign earnings would generally be exempt from tax. But the bill complicates the picture with several overlapping anti-base-erosion provisions. A one-time tax on unrepatriated earnings is also used as a transition and revenue raiser.

Dividend exemption The current system of taxing U.S. corporations on foreign earnings of their foreign subsidiaries when the earnings are repatriated would be replaced with a partial territorial system which provides a 100% dividends-received deduction for certain foreign-source dividends. Under the territorial system, a 10%-or-more U.S. corporate shareholder who meets certain requirements would receive a dividends-received deduction for the foreign source portion of the dividends received. No foreign tax credit or deduction would be allowed for any taxes paid or accrued with respect to any portion of the dividend for which the dividends-received deduction is allowed. However, “deemed paid” foreign tax credits under Sections 902 and 960 would continue to be allowed for Subpart F income inclusions. This provision is effective for distributions made after 2017.

Solely for purposes of determining loss on dispositions of foreign subsidiary stock of a 10%-or-more U.S. corporate shareholder, the tax basis in such shares would be reduced by the amount of the dividends-received deduction, but not below zero. Domestic corporations that transfer substantially all the assets of a foreign branch to a 10%-or-more-owned foreign subsidiary in which it is a U.S. shareholder will include in gross income any net branch losses (reduced for any gain recognized under Section 367) that were deducted by the domestic corporation in previous years. The effective date for these provisions applies to dividend distributions or transfers of branch assets taking place after Dec. 31, 2017.

The bill would also repeal Section 956 regarding the investment of earnings in U.S. property as it relates to U.S. corporations effective for tax years beginning after 2017. Section 956 would still be applicable to non-corporate taxpayers.


Tax on previously unrepatriated earningsAs expected, unrepatriated foreign earnings are subject to a one-time transition tax. U.S. shareholders owning a 10%-or-greater interest in a foreign subsidiary would, under the Subpart F rules, include in U.S. taxable income the U.S. shareholder’s pro rata share of the post-1986 earnings and profits (E&P) to the extent such E&P has not been previously subject to U.S. tax. The measurement date of such inclusion would be the greater of the E&P balance on Nov. 2, 2017, or Dec. 31, 2017. The inclusion in income would be for the foreign subsidiary’s last taxable year beginning before 2018.

E&P would be calculated on a net basis, taking into account the U.S. shareholder’s proportionate share of any accumulated E&P as well as any E&P deficits of each 10%-owned foreign subsidiary. E&P would be classified as either earnings that

have been retained in the form of cash and cash equivalents, or as earnings that have been reinvested in illiquid assets (e.g., depreciable assets). The portion of the E&P classified as earnings invested in cash or cash equivalents would be taxed at a rate of 12%, and the remaining E&P would be taxed at a rate of 5%. The bill defines cash and cash equivalents to include, among other things, net accounts receivables.

Foreign tax credits deemed paid as part of the transition would be available to offset the one-time tax, but would be subject to a haircut based on the respective reduction in rate from the applicable statutory rate. Existing foreign tax credit carry-forwards would be available to offset the one-time tax. Special rules exist for S corporations that would defer the one-time tax unless certain triggering events occur (e.g., liquidation of the S corporation). An election is available which would allow U.S. shareholders to spread the one-time transition tax liability over a period of up to eight years in equal installments.

Minimum tax The bill includes a minimum tax on certain foreign income that is deemed to yield a “high return.” The provision is designed to prevent certain base-erosion incentives by subjecting high returns often associated with intangible income to current U.S. tax. Under the provision, effective for tax years beginning after 2017, a U.S. shareholder of one or more controlled foreign corporations would be subject to current U.S. tax on 50% of “foreign high returns.” The term “foreign high returns” is defined as the excess of the controlled foreign corporations’ aggregated net income over a “routine return” amount.

The routine return is the product of multiplying a specified percentage by the controlled foreign corporations’ aggregate adjusted basis in depreciable tangible property adjusted downward for certain interest expense. The computations are done on an entity-by-entity basis and then aggregated. This allows loss entities to offset others with foreign high return income within the group, but not below zero. The specified percentage is set at 7% plus the federal short-term rate.


The provision provides that certain types of income are excluded from being classified as “foreign high returns,” including income that is taxed as effectively connected with a U.S. trade or business, Subpart F income and certain income that would be Subpart F income but for applicable exceptions. Foreign high returns would be treated similarly to Subpart F income and foreign taxes paid on such income would be available as a credit but would be limited to 80% of the amount of such taxes that would otherwise be creditable.

Limit on net interest expenseThe bill would limit the net interest expense in excess of interest income of certain domestic corporations to the extent the U.S. corporation’s share of the group’s worldwide net interest expense exceeds 110% of the U.S. corporation’s share of the group’s global earnings before EBITDA.

The limit would apply in addition to the general rules proposed in the bill that disallow interest expense as described earlier. The limit only applies to domestic corporations that are members of an “international financial reporting group,” defined as a group of entities that meets the following three requirements:

• Includes at least one foreign corporation engaged in a trade or business in the United States or at least one domestic corporation and one foreign corporation

• Prepares consolidated financial statements

• Has a three-year average of annual gross receipts of more than $100 million (aggregate of all global entities)

Disallowed interest expense would be carried forward for up to five tax years, and is utilized on a first-in, first-out basis. Special rules exist for international financial reporting groups with either negative group EBITDA or entities with non-positive EBITDA. The provision would be effective for tax years beginning after 2017.

Excise tax on deductible payments to foreign-related parties The bill creates a 20% excise tax (or equivalent U.S. corporate tax rate) imposed on amounts paid or incurred by a domestic corporation to a foreign corporation which is a member of the same international financial reporting group, defined as a group of entities that meets the following three requirements:

• Includes an amount paid or incurred during the reporting year of such group

• Prepares consolidated financial statements

• Has a three-year average of payments from U.S. corporations to foreign-related corporations that exceeds $100 million

The tax is paid by the U.S. corporation unless an exception applies. The payments subject to the tax include all payments that are deductible, includable in cost of goods sold, and included in the basis of a depreciable or amortizable asset (subject to certain exceptions). Certain exceptions are also provided to exempt payments from being subject to the excise tax. Such exceptions include payments made for interest expense, intercompany services which are charged at no mark-up, certain commodities, or if the payment is effectively connected income in the hands of the foreign payee, or the foreign payee makes an election to treat the payments as income effectively connected with the conduct of a U.S. trade or business.

The excise tax is not deductible by the U.S. paying corporation, and the provision would be effective for tax years beginning after 2018.


Although this proposal in some ways mirrors the goals of the controversial border adjustment tax (BAT) proposal by essentially washing out the deduction for certain imports, it is much narrower in scope. It only applies to related parties and payments that exceed $100 million. For now it appears less likely to generate the kind of widespread backlash that doomed the BAT.


Other international changesThe bill provided for numerous other provisions impacting the taxation of foreign income and foreign persons, including:

• Repealing the treatment of foreign-base company's oil-related income as Subpart F.

• Providing an inflation adjustment for the $1 million threshold under the de minimis exception for Subpart F.

• Making permanent the “look-through” rule for purposes of determining a U.S. shareholder’s Subpart F income.

• Modifying the attribution rules for determining whether a foreign corporation is treated as a controlled foreign corporation.

• Eliminating the requirement that a corporation be controlled for 30 days before Subpart F inclusions are applicable.

• Modifying certain provisions related to possessions of the United States.

• Restricting the exception for certain insurance companies under the Passive Foreign Investment Company rules.

Compensation and benefits

Compensation deductionsThe bill expands the limit on a public company’s ability to deduct compensation under Section 162(m). The exceptions for commissions and performance-based compensation would be removed for tax years starting in 2018 or later, meaning no compensation in excess of $1 million for covered employees would be deductible, regardless of its character. The bill expands the definition of a covered employee to include the CFO, and the $1 million deduction limitation applies to a covered employee’s compensation in all future years, including after termination of employment or death.

Nonqualified deferred compensationThe nonqualified deferred compensation rules under Section 409A, 457(f), and 457A would be repealed and replaced with new code Section 409B. The new rules would generally require nonqualified deferred compensation to be included in employee income when vested instead of when paid. In addition, stock options and stock appreciation rights are treated as deferred compensation, and income is recognized when vested instead of when exercised. The rules would generally be made effective for compensation for services performed after Jan. 1, 2018, with some limits on the deferral for compensation from services before that date.

“Companies should look to understand how the tax bill would affect their situation and plan accordingly.”


Employees would potentially recognize income before it is actually received under this proposal. Employers would have to consider revising nonqualified deferred compensation plans to provide for payment upon vesting if this provision is enacted.


Retirement plansThe bill would loosen rules for in-service and hardship distribution from retirement plans. The age threshold for in-service distributions would be lowered while hardship distributions would no longer be limited only to employee deferral amounts and could include employer contributions and investment earnings. Treasury would be instructed to remove restrictions on making contributions after a hardship distribution. The bill would also extend the time an employee has to pay off a loan when employment or the plan is terminated from 60 days to the due date (including extensions) of the employee’s tax return.

In addition, the bill would create a new code section to expand the nondiscrimination cross-testing between defined-benefit and defined-contribution plans to make it easier for frozen pension plans to meet nondiscrimination testing.

Tax-exempt organizationsThe bill raises a modest amount of revenue with several revenue-raising provisions aimed at tax-exempt organizations. Several of them focus on the activities of tax-exempts, including provisions to:

• Allow churches to make political statements

• Require donor-advised funds to annually disclose information such as average amount of grants

• Include research income unrelated business income (UBIT) unless research results are freely made available to the public

CompensationThe bill creates a new 20% excise tax on wages over $1 million paid by a tax-exempt organization to its highest-paid employees beginning in 2018. The tax applies to any employee who was one of the five highest-paid employees in any year beginning in 2017 or later. The tax also applies to parachute payments.

Excise tax on foundations and colleges and universitiesThe bill amends the excise tax on net investment incomes of private foundations to create a flat 1.4% rate with no ability to reduce the rate based on distributions. Importantly, the legislation also extends the tax to the net investment income of private colleges and universities for the first time. The provision would apply to private colleges and universities (not a public, state college or university) that have at least 500 students during the preceding year and have an aggregate fair market value of assets (other than those assets used to carry out the exempt purpose of the institution) of at least $100,000 per student.


Exception to excess business holding taxThe legislation would also create an exception to the tax under Section 4943(a), which imposes 10% tax on the value of excess business holdings by a private foundation. This excess business holding tax can rise to as high as 200% of the excess business holdings if the private foundation still has such holdings after the imposition of the 10% tax. To meet the exception, a private foundation must own 100% of the business entity’s voting stock, which must not have been acquired by purchase; all profits from the business enterprise must be distributed to the private foundation; and the business must be independently operated.

UBITThe bill would require tax exempt organizations to increase UBIT by the amount of certain fringe benefits provided to employees. These fringe benefits are limited to qualified transportation, any parking facility used in connection with qualified parking or any on-premises athletic facility for which the expenses are not otherwise deductible under Section 274 because they are entertainment expenses.


Outlook

Brady has acknowledged substantive changes will be needed to clear this bill through the House. The Senate is also expected to pass its own version. While the legislation will evolve and there is no guarantee tax reform is enacted at all, Republicans are pushing hard toward enactment on a very fast timeline. Businesses should be taking the process and these proposals seriously. Companies should look to understand how the tax bill would affect their situation and plan accordingly. In addition, there are powerful planning strategies that need to be implemented before tax reform is enacted in order to be successful.

Contacts

Tax Professional Standards Statement This content supports Grant Thornton LLP’s marketing of professional services and is not written tax advice directed at the particular facts and circumstances of any person. If you are interested in the topics presented herein, we encourage you to contact us or an independent tax professional to discuss their potential application to your particular situation. Nothing herein shall be construed as imposing a limitation on any person from disclosing the tax treatment or tax structure of any matter addressed herein. To the extent this content may be considered to contain written tax advice, any written advice contained in, forwarded with or attached to this content is not intended by Grant Thornton LLP to be used, and cannot be used, by any person for the purpose of avoiding penalties that may be imposed under the Internal Revenue Code.

David SitesPartnerInternational Tax ServicesT +1 202 861 4101E [email protected]

Dustin StamperDirectorWashington National Tax OfficeT +1 202 861 4144E [email protected]

Shamik TrivediSenior Tax ManagerWashington National Tax OfficeT +1 202 521 1511E [email protected]

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